Amnesty International Canada et al. v. Canadian Armed Forces (Chief, Defence Staff) et al., (2007) 320 F.T.R. 236 (FC)

• Judge: Mactavish, J.
• Court: Federal Court (Canada)
• Case Date: November 05, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 320 F.T.R. 236 (FC);2007 FC 1147

Amnesty Intl. Can. v. Cdn. Armed Forces (2007), 320 F.T.R. 236 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. NO.005

Amnesty International Canada and British Columbia Civil Liberties Association (applicants) v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada (respondents)

(T-324-07; 2007 FC 1147)

Indexed As: Amnesty International Canada et al. v. Canadian Armed Forces (Chief, Defence Staff) et al.

Federal Court

Mactavish, J.

November 5, 2007.

Summary:

Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan. Specifically, the application sought to review the conduct of the Canadian Forces with respect to detainees held by the Canadian Forces in Afghanistan and the transfer of those individuals to Afghan authorities. The Chief of the Defence Staff for the Canadian Forces, the Minister of National Defence and the Attorney General of Canada moved to strike the applicants' notice of application, arguing that the applicants lacked standing to advance the issues identified in the notice of application and the application was bereft of any chance of success.

The Federal Court granted the applicants public interest standing. Further the court was satisfied that while a number of the issues raised by this case were novel, it could not say that they were clearly bereft of any chance of success. As a consequence, the motion to strike was dismissed.

Administrative Law - Topic 3357

Judicial review - Practice - Interlocutory proceedings (incl. application to strike) - [See Practice - Topic 221 and first Practice - Topic 2242 ].

Civil Rights - Topic 8306

Canadian Charter of Rights and Freedoms - General - Application of - Territorial limits - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan, specifically, with respect to detainees held by the Canadian Forces in Afghanistan and the transfer of those individuals to Afghan authorities - The Chief of the Defence Staff for the Canadian Forces, et al. moved to strike the applicants' notice of application, arguing that the application was bereft of any chance of success because the application was framed entirely under the Charter and the Charter did not have extraterritorial effect in this case - The Federal Court noted that this case sought to have the Charter apply in a novel factual context that had not been the subject of prior judicial consideration - The court stated that while the Supreme Court of Canada had recently articulated general principles limiting the extraterritorial application of the Charter (R. v. Hape, 2007), the majority specifically left open the potential extraterritorial application of the Charter in cases where fundamental human rights were at stake - The court stated that in the circumstances, and without opining in any way as to whether the Charter did or did not apply, it could not conclude that this application for judicial review was so clearly improper as to be bereft of any possibility of success - See paragraphs 71 to 101.

Civil Rights - Topic 8320.1

Canadian Charter of Rights and Freedoms - General - Application - Armed forces - [See Civil Rights - Topic 8306 ].

Civil Rights - Topic 8320.1

Canadian Charter of Rights and Freedoms - General - Application - Armed forces - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan, specifically with respect to detainees held by the Canadian Forces in Afghanistan and the transfer of these individuals to Afghan authorities - The Chief of the Defence Staff for the Canadian Forces, et al. (respondents) moved to strike the applicants' notice of application, arguing that the application was bereft of any chance of success because the Charter sections relied on (i.e., ss. 7 to 14) were not engaged on the facts alleged in the notice of application - The Federal Court noted that while some of the jurisprudence presented by the parties was arguably applicable by analogy to this case, none of the case law dealt with a similar fact situation to that giving rise to this application - As a consequence, the court was not persuaded that the application for judicial review was clearly bereft of any chance of success - The court reiterated that the fact that a notice of application involved novel or difficult points of law did not justify striking it out - See paragraphs 102 to 120.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review respecting the "actions or potential actions" of the Canadian Forces deployed in Afghanistan, specifically with respect to detainees held by the Canadian Forces in Afghanistan and the transfer of these individuals to Afghan authorities - The Chief of the Defence Staff for the Canadian Forces, et al. (respondents) moved to strike the applicants' notice of application, arguing that there was no longer a live controversy because the Afghan Minister of Defence and the Chief of the Defence Staff had signed a new agreement addressing the points of contention and therefore the judicial review was moot - The Federal Court held that the respondents had not met their onus of establishing that the issues raised by the judicial review application were purely hypothetical or abstract - Nor had the respondents established that there was no longer a live controversy between the parties, such that the application for judicial review was therefore bereft of any chance of success - See paragraphs 126 to 136.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing - Amnesty International Canada and the British Columbia Civil Liberties Association (the applicants) applied for judicial review respecting the "actions or potential actions" of the Canadian Forces deployed in the Islamic Republic of Afghanistan, specifically with respect to detainees held by the Canadian Forces in Afghanistan and the transfer of these individuals to Afghan authorities - The Chief of the Defence Staff for the Canadian Forces, the Minister of National Defence and the Attorney General of Canada moved to strike the applicants' notice of application, arguing that the applicants lacked standing to advance the issues identified in the notice of application and the application was bereft of any chance of success - The Federal Court granted the applicants public interest standing - Further the court was satisfied that while a number of the issues raised by this case were novel, it could not say that they were clearly bereft of any chance of success - As a consequence, the motion to strike was dismissed.

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - The Federal Court reviewed the principles applicable on a motion to strike a notice of application (i.e., a judicial review application) - See paragraphs 22 to 33.

Practice - Topic 2242

Pleadings - Striking out pleadings - Appeals, applications or originating motions - [See Practice - Topic 221 ].

Cases Noticed:

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48 (F.C.A.), refd to. [para. 23].

Addison & Leyen Ltd. et al. v. Canada Customs and Revenue Agency (2006), 346 N.R. 238; 2006 FCA 107, revd. (2007), 365 N.R. 62; 2007 SCC 33, refd to. [para. 28].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 31].

MIL Davie Inc. v. Société d'exploitation et de développement d'Hibernia ltée (1998), 226 N.R. 369 (F.C.A.), refd to. [para. 32].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 36].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 39].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey) (2002), 299 N.R. 1; 175 B.C.A.C. 161; 289 W.A.C. 161; 2002 SCC 86, refd to. [para. 39].

Hy and Zel's Inc. v. Ontario (Attorney General) - see Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General).

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 39].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 39].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [1999] 2 F.C. 211; 157 F.T.R. 123 (T.D.), refd to. [para. 42].

Professional Institute of the Public Service of Canada v. Canada Customs and Revenue Agency (2004), 251 F.T.R. 56; 2004 FC 507, refd to. [para. 59].

Canadian Bar Association v. British Columbia et al., [2006] B.C.T.C. 1342; 2006 BCSC 1342, refd to. [para. 59].

Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.), refd to. [para. 61].

Markevich v. Minister of National Revenue, [1999] 3 F.C. 28; 163 F.T.R. 209 (T.D.), revd. [2001] 3 F.C. 449; 270 N.R. 275; 2001 FCA 144, affd. [2003] 1 S.C.R. 94; 300 N.R. 321; 2003 SCC 9, refd to. [para. 69].

Nunavut Tunngavik Inc. v. Canada (Attorney General) (2004), 245 F.T.R. 42; 2004 FC 85, refd to. [para. 69].

R. v. Hape (L.R.) (2007), 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 81].

Al-Skeini et al. v. United Kingdom (Secretary of State for Defence), [2007] N.R. Uned. 125; [2007] UKHL 26, refd to. [para. 93].

Omar et al. v. United States Army (Secretary) et al. (2007), 479 F.3d 1 (D.C. Cir.), refd to. [para. 93].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 100].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 106].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 106].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 108].

Boudreau v. Thaw (No. 2) (1913), 13 D.L.R. 712 (Que. S.C.), refd to. [para. 117].

Hottentot Venus' Case, Re (1810), 13 East 195; 104 E.R. 344 (K.B.), refd to. [para. 117].

John Doe, Ex parte - see Doe, Re.

Doe, Re (1974), 46 D.L.R.(3d) 547 (B.C.C.A.), refd to. [para. 117].

R. v. Gamble - see Gamble v. R.

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 118].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 135].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 32(1) [para. 72].

Counsel:

Paul Champ and Amir Attaran, for the applicants;

J. Sanderson Graham and R. Jeff Anderson, for the respondents.

Solicitors of Record:

Raven Cameron Ballantyne & Yazbeck LLP, Ottawa, Ontario, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, for the respondents.

This matter was heard in Ottawa, Ontario, on October 17-18, 2007, by Mactavish, J., of the Federal Court, who delivered the following decision on November 5, 2007.